-p  J 


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An  act  of  the  G 
Conf  Pam  #749 


AN    ACT 


GENERAL  ASSEBIBLY  OF  ALABAMA, 


REGULATE  JUDICIAL  PROCEEDINGS,  &c., 


ACT  E\PL.WATI)RV    THEREOF, 

PASSED  AT  THB  CALLED  SESSION,  18G1 

f 


3000-Publislied  by  Authority. 


I 

MONTGOMERY : 

SHOETER    &    RKID,      STATE    PRIXTEKS,    ADVERTISER   OFFICE* 
1861. 


Digitized  by  the  Internet  Archive 
in  2010  with  funding  from 
Duke  University  Libraries 


http://www.archive.org/details/actofgeneralasseOOalab 


AN  ACT 

To  regulate  Judicial  Proeeedinge,  and  for  other  purposes. 

Sec.  1.  Be  it  enacted  bu  the  Senate  ana  ..ouse  of  liejjre- 
sentatkes  of  the  State  of  Alabama  in  Qenual  Assembly  con- 
vened, That  hereafter  in  the  commencement  of  any  suit 
in  any  of  the  courts  of  law  or  equity  in  this  State,  the 
court  to  which  any  i^u't,  writ,  sumuions,  complaint,  or 
bill  may  be  made  return^ole  shall  ue  deemed  and  held  as 
the  return  term  of  such  suit,  writ,  summons,  complaint 
or  bill,  and  the  same  shall  stand  for  trial  at  the  next  suc- 
ceeding regular  term  of  such  court  appointed  by  law  to 
be  holden  after  such  return  term ;  and  the  parties  in  the 
law  courts  shall  not  be  required  to  plead  at  the  first  term 
except  that  pleas  in  abatement  shall  be  filed  as  now  re- 
quired by  law:  Provided,  The  provisions  of  this  section 
shall  not  apply  to  bills  in  chancery  for  partition  and  sales 
of  property,  or  in  cases  for  divorce  :  And  i^rovided  farther, 
That  the  defendant  or  party  against  whom  a  bill  may  be 
exhibited  in  a  chancery  suit  may  come  in  and  consent  to 
a  trial  at  the  first  terra.  Under  this  section,  when  suits 
are  hereafter  brought  in  the  City  Court  of  Mobile  to  the 
March  or  June  term  of  said  court,  said  term  shall  be  held 
as  the  return  term,  and  said  suits*  shall  stand  for  trial  at 
the  next  succeeding  December  term;  and  suits  that  may 
be  brought  returnable  to  the  December  terms,  said  De- 
cember terms  shall  be  held  as  the  return  term,  and  said 
suits  shall  stand  for  trial  at  the  next  succeeding  June 
term ;  the  said  June  terra  shall  comraence  on  the  third 
Monday  in  May  of  each  year  during  the  continuance  of 


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tliis  act:  Provided  further,  That  the  provisions  of  this  sec- 
tion sliall  apply  to  all  writs,  sunniioiises,  complaints,  and 
bills  returnable  to  the  Spring  turni,  18G1,  of  the  Circuit 
and  Chancery  Courts,  whether  issued  before  or  after  the 
passage  of  this  act. 

Sec.  2.  Be  it  farther  enacted.  That  in  any  case  where 
mv  execution  shall  have  issued  or  may  be  issued,  found- 
eduiion  any  judgment  or  decree  of  any  court  of  record 
in  this  State,  it  shall  aiitl  may  be  lawful  for  the  sheriff  or 
other  officer  authorized  to  levy  such  execution  to  take 
from  the  defendant  or  defendants  therein  a  forthcoming 
bond  with  at  least  two  good  sureties,  conditioned  for  the 
delivery  (^f  any  property  levied  upon  to  satisfy  such  execu- 
tion at  the  [jlace  where  the  same  may  be  made  returnable 
on  the  return  day  of  such  execution  ;  and  in  the  event  of  a 
failure  to  deliver  such  property  on  the  return  day  i>f  the 
execution,  according  to  the  condition  of  the  forthcoming 
bond  the  sheriff  or  other  ofKcer  levying  such  execution 
shall  return  such  forthcoming  bond  "forfeited;"  and  such 
return  shall  have  the  force  and  effect  of  a  judgment 
ao-ainst  Ihe  principal  and  sureties  therein  for  the  full 
amount  of  the  original  judgment  and  interest  and  costs 
thereon,  and  execution  shall  issue  thereon  accordingly. 

Sec.  3.  Be  it  further  enacted,  That  in  case  any  deed  of 
trust  or  mortgage,  with  power  of  sale,  has  been  or  may 
be  executed  in  this  State,  to  secure  the  payment  of  any 
debt  or  debts,  it  shall  not  be  lawful  for  the  trustee  or  the 
creditor  nanied  in  such  deed  or  mortgage  to  sell  any 
property  so  conveyed,  without  having  the  actual  posses- 
sion thereof,  so  as  to  deliver  the  same  to  the  purchaser 
upon  making  said  sale..  And  in  the  event  the  grantor 
in  any  such  deed  of  trust  or  mortgage,  with  power  of  sale, 
shall  fail  on  demand  to  deliver  possession  of  any  property 
dr  estate  so  conveyed,  after  having  made  default  in  the 
payment  of  the  debt  thereby  secured,  it  shall  be  lawful 
for  the  trustee  or  creditor  claiming  to  have  legal  title  to 
sue  for  the  possession  of  the  same;  and,  if  personal  prop- 
erty, the  slieriff,  upon  such  suit  being  brought  and  affida- 


vit  of  title  made,  shall  take  tlie  property  into  possession, 
unless  the  grantor  give  bond  with  good  and  sufficient 
sureties,  as  in  detinue  cases,  to  be  approved  by  the  sheriff 
or  officer  serving  the  summons  or  writ,  conditioned  for 
the  forthcoming  of  the  property  sued  for,  to  answer  the 
lien  created  by  any  such  deed  of  trust  or  mortgage,  or  in 
default  thereof  to  pay  such  debt  and  interest  thereon, 
with  all  costs  :  Prorided,  hoivcrcr,  The  surety  to  said  bond 
shall  not  be  made  liable  for  the  value  of  any  such  prop- 
erty as  may  die  before  the  law  day  of  the  bond,  without 
fault  on  the  part  of  the  defendant. 

Sec.  4.  Be  it  further  enacted,  That  hereafter  justices' 
courts  in  this  State  for  tlie  trial  of  civil  causes  shall  be 
held  quarterly,  at  such  times  as  the  justices  in  each  beat 
may  appoint,  and  may  continue  three  days,  if  necessary; 
and  the  term  to  whicli  any  original  process,  summons, 
warrant,  or  complaint  shall  be  made  returnable  shall  be 
deemed  and  held  the  docket  term  of  said  court,  and  the 
cause  shall  stand  for  trial  at  the  next  ensuing  term  there- 
after; and  on  all  judgments  rendered  by  any  justice  in 
any  civil  cause  the  party  or  parties  against  whom  such 
judgment  may  be  rendered  shall,  at  any  time  after  the 
rendition  thereof  and  before  the  payment  of  the  same, 
have  the  right  of  appeal  to  the  next  terra  of  the  Circuit 
or  County  Court  of  the  county  in  which  such  judgment 
may  be  rendered,  upon  giving  such  appeal  bond  with 
surety  as  is  now  required  bylaw  in  appeal  cases;  and 
the  term  to  which  such  appeal  may  be  taken  shall  be 
the  return  term  thereof,  and  the  next  succeeding  term 
the  trial  term  thereof;  and  in  no  case  of  appeal  shall  a 
county  tax  be  charged  unless  the  expense  of  a  jury  trial 
be  incurred;  nor  shall  any  damages  over  and  above  the 
debt  and  interest  thereon  be  allowed.  Justices  of  the 
peace  shall  make  executions  issued  by  them  returnable  to 
the  quarterly  term  of  their  courts  next  after  the  rendition 
of  any  judgment. 

Sec.  5.  Be  it  further  enacted,    That  the  provisions   of 
this  act  shall  not  be  held  to  apply  to  suits  of  any  descrip- 


6 

tion  or  jutlcrments  ii:  any  court  against  (lefiiulting  public 
officers,  for  failing  to  pay  over  money,  or  for  auy  broach 
of  the  duties  required  of  them  by  law  ;  nor  against  trus- 
tees lor  any  fraudulent  use  of  trust  funds,  but  such  suits 
and  judgments  and  executions  lounded  thereon,  shall  be 
reguJutcd  in  all  respects  by  the  laws  heretofore  in  force 
in  such  cases. 

Skc.  6.  Be  it  further  enacted,  Tbat  the  property,  real 
and  personal,  of  all  persons,  who  are  or  may  be  engaged 
in  the  actual  military  service  of  this  State,  shall  be  ex- 
empted from  levy  and  sale  under  legal  process  while  so 
engaged,  and  for  at  least  sixt}-  days  after  such  persons  shall 
have  been  released  or  discharged  from  such  services. 

Sec.  7.  Be  it  further  enacted,  That  all  laws  and  parts  of 
laws,  assessing  damages  upon  appeals  to  the  Supreme 
Court  be  and  the  same  are  hereby  repealed,  and  no  tax 
fee  shall  be  allowed  in  the  Supreme  Court  on  appeals, 
unless  the  appellant  appears  by  counsel  and  litigates  the 
same. 

Sec.  8.  And  be  it  further  enacted,  That  in  all  cases 
where  executions  have  been  or  may  be  issued  upon  exist- 
ing judgments,  orders  or  decrees  of  any  court,  and  the 
plaintitl',  his  agent  or  attornej',  shall  not  authorize  the 
officer  whose  duty  it  is  to  levy  the  same,  by  endorsement 
in  writing  on  said  execution,  to  take  from  the  defendant 
or  purchaser  of  any  property  which  may  be  sold  by  virtue 
thereof,  the  bills  of  any  of  the  banks  in  this  State  alpar, 
it  shall  be  the  duty  of  such  officer,  upon  the  defendant 
giving  a  forthcoming  bond  with  surety  for  the  delivery 
of  said  property  to  be  sold  in  satisfaction  of  said  execu- 
tion on  the  iirst  Monday  in  February  next.  If  said  prop- 
erty is  not  delivered  at  the  law  day  of  the  bond,  the  same 
shall  have  the  force  and  efiect  of  a  judgment,  and  the 
clerk  shall  issue  execution  thereon  for  the  debt,  interest 
and  costs  of  said  judgment  and  execution. 

Approved,  8th  February,  18G1. 


AN  ACT 

Explanatory  of,  and  Supplemental  to,  an  act  passed  at 
the  present  session,  entitled  "An  act  to  regulate  judicial 
proceedings,  and  for  other  purposes." 

Sec.  1.  -Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives^ of  the  State  of  Alabama  in  General  Assembly  con- 
vened,  That  the  duty  of  the  officer  which  is  left  unex- 
pressed in  the  last  section  of  the  act  above  referred  to, 
is  hereby  made  and  declared  to  be,  in  every  case  contem- 
plated by  said  last  section,  to  return  the  processor  execu- 
tion thus,  "Stayed  by  the  failure  of  the  plaintiff  or  his 
agent  to  make  the  endorsement  required  by  law,"  and 
afterwards  no  further  prodeeding  shall  be  had  in  any 
such  case  until  the  first  Monday  in  February  next,  on 
and  after  which  day,  ever}^  such  forthcoming  bond  shall 
be  deemed  and  taken  as  a  judgment  against  the  obligors' 
therein. 

Sec.  2.  Be  it  further  enacted,  That  none  of  the  provi- 
sions of  the  act  to  which  this  is  a  Supplement,  shall  be 
so  construed  as  to  effect  any  contract  which  has  been,  or 
may  be  entered  into  by  the  State  of  Alabama,  with  any 
Railroad  Company. 
I;;^ Approved,  9th  February,  1861. 


Office  of  Secretary  of  State,  i 

Montgomer}^,  Ala.,  February  9th,  1861.  j 
I  hereby   certify   that  the   foregoing  are  .true  copies 
of  the  original  acts  now  on  file  in  my  office. 

r.  II.  BRITTAN, 
Secretary  of  State, 


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penmalipe* 

pH8.5 


